Reading John Hart ElyÆs latest book was like reuniting with and learning more about an old acquaintance from graduate school. ElyÆs chef dÆoeuvre, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW, published in 1980 by Harvard University Press, was all the rage in my graduate-level constitutional theory seminars in the early 1980s. The most recent Ely tome, a compendium of his writing over the course of a long and prolific career, reflects many of the premises and arguments of his earlier work on judicial review but also provides an engaging intellectual autobiography that offers personal and historical contexts for his jurisprudential postures.
ON CONSTITUTIONAL GROUND is an eclectic anthology with work that ranges from memoranda that Ely wrote to Chief Justice Earl Warren while serving as his law clerk in 1964-65, to scholarly law review articles from his student days and those produced during his many years as a law professor, to bureaucratic correspondence from his stint in the mid-1970s as the Department of TransportationÆs General Counsel, to newspaper editorials written as a constitutional expert and concerned citizen. Thus the book contains something for everyone: students of law, political scientists, historians, and informed lay readers.
Undergirding ElyÆs analysis of most constitutional interpretation is his so-called process jurisprudence, propounded most fully in his 1980 book. Offered as a criterion for circumscribing unfettered judicial review, Ely posits that judges should only exercise their ultimate power over legislative prerogative in cases involving questions of political participation (particularly by marginalized minorities) and not determine the "substantive merits of the political choice under attack." (1980, 181) This doctrine leads him to reject result-oriented jurisprudence, with its inevitable judge-imposed, value-laden outcomes, whether it originates on the left or right of the political spectrum. Consequently, he is as opposed to the 1905 LOCHNER decision as he is to the 1973 ruling in ROE because both cases discover phantom "rights" in the alleged substantive component of the due process clause.
Like most former law clerks to Supreme Court justices, Ely idealizes his judicial mentor, and on occasion his process jurisprudence runs the risk of serving as a mere justification and apologetic for many of the key decisions of the Warren Court (e.g., the legislative reapportionment cases and the desegregation rulings). Indeed, the book begins with a 1974 tribute to "the Chief" (the late Earl Warren) in which Ely describes his former boss as "one of the greatest single forces for right the nation has ever known" and a jurist who made "the American Dream more broadly accessible than it had ever been before." Ely argues that Warren achieved these ends through his abiding concern with access to the democratic process. As the Chief Justice used to maintain, if REYNOLDS v. SIMS (the one man, one vote case) had been decided before BROWN, the latter would have been unnecessary. In an editorial comment, Ely recognizes that his tribute to Warren contains the genesis of his own emerging themes on judicial review. Such insights are what make the book a revealing portrait of ElyÆs intellectual odyssey.
In its organization, the compendium follows the typical syllabus outline for courses on constitutional law and civil rights and liberties and would be an appropriate assigned text of provocative readings for upper level undergraduate, graduate, and law school classes. After the tribute to Warren and a reprise of the main thesis of DEMOCRACY AND DISTRUST in Chapter 1, Ely offers readings on federalism in Chapter 2. The least useful section for political scientists, the federalism chapter reflects ElyÆs rather arcane perceptions, primarily from the 1970s, of this innovative constitutional principle. Instead of focusing on the intriguing political ramifications of the Founding FatherÆs imaginative construct, Ely bogs down in a self-admittedly "strange" excerpt entitled, "The Limits of Logic: Syntactic Ambiguity in Article I of the U.S. Constitution," and then addresses that staple of law school (but not liberal arts) constitutional law curricula--ERIE RAILROAD v. TOMPKINS, the landmark ruling in which the U.S. Supreme Court abandoned further development of federal common law in diversity jurisdiction cases.
Likewise, Chapter 3 opens with highly technical treatises on separation of powers drawn from law review articles produced during ElyÆs career as a law student that remain somewhat inaccessible (and, frankly, dull) to all but the most scholarly legal theorist. Midway through the third chapter, however, the book catches fire for those of us more interested in how academic theories apply to practical politics and illuminate political history. In a memo produced in 1973 for Watergate Special Prosecutor Archibald Cox on the legality of calling President Richard Nixon before a grand jury, Ely begins with a reference to legal scholar Alex BickelÆs argument, based on the separation of powers, that not as a "matter of law, but of assumed convention[,] the President, alone, is presumed to be immune to the judicial process." Ely explores the nuances of this assumption and implicitly seems to shrink from it with statements such as: "One thing that is clear is that the president does not stand above the law." He also appears unpersuaded by arguments that the chief executive is immune from criminal proceedings against him because they could potentially bring the entire federal government to a halt. He adds that an impeachment proceedings could have the same effect, but presidents are not immune from them. (Inevitably, the reader wonders if ElyÆs logic extends to the more current controversy involving Paula JonesÆs civil suit against President Clinton.) He concludes the separation of powers chapter with short journalistic commentaries on executive war power with references to the War Powers Act, the Gulf War, and President ClintonÆs commitment of troops to Bosnia. On the latter, Ely concludes in a 1994 editorial, "Mr. Clinton [should] remove from his rTsumT the report that he once served as a professor of constitutional law [very briefly at the University of Arkansas]. Making war in Bosnia might be a good idea--God knows the temptation to ædo somethingÆ to end the horror is one I share--but without congressional authorization it is a defiance of the Constitution." This notion of eschewing personal value preferences out of fealty to (implicit or explicit) constitutional mandates is a consistent theme in ElyÆs analyses. As noted above, it is also at the heart of his process-oriented jurisprudence.
The next three-quarters of the book are devoted to standard topics in civil rights and liberties: freedom of expression, religious liberty, criminal procedure, racial discrimination, and substantive due process. The co-authored pieces (with famous, or some might say infamous, law colleagues Alan Dershowitz and Laurence Tribe) and those written to counter such professorial competitors as Ronald Dworkin were informative but too clever by half as the authors seemed to commit a common (and most unbecoming) academic sin--scholarly one-upmanship. Once more, I found the most stimulating entries to be those "experiential" pieces produced by Ely in the so-called real world. He includes memos to Chief Justice Warren on UNITED STATES v. SEEGER (the conscientious objector case) and GRISWOLD v. CONNECTICUT (the birth control/right to privacy decision). In both rulings, Ely notes, somewhat bemusedly, neither the Chief nor a majority of the Court took his positions on the cases to heart. Yet he also proudly observes that his reasoning from the mid-1960s foreshadowed his consistent positions on free exercise of religion and the right to privacy, namely, that the Supreme Court should not enter definitional and value-laden thickets in deciding these cases. In fact, he comments that assembling the book revealed to him that his thinking on fundamental issues had remained constant from his student days, to his early career, to the present.
One of the most charming accounts of his initial professional contributions occurs in Chapter 6 on criminal procedure. Ely, it seems, has had a Zelig-like knack for placing himself in the thick of momentous constitutional, political, and historical events. (He even served as a junior attorney on the Warren Commission--although I donÆt believe he was in Dallas on November 22, 1963.) Between his second and third years in law school, he spent the summer assisting then prominent Washington attorney Abe Fortas in preparing the brief for Clarence Earl Gideon in the 1963 landmark right-to-counsel case before the Supreme Court. In an August 1962 memo to Fortas, Ely cleverly argued how the Court could overturn GideonÆs conviction even if it chose not to overrule the controlling precedent (BETTS v. BRADY). Ultimately, the Court did both in establishing the right to counsel in criminal cases.
For readers particularly interested in potential influences on Supreme Court decision-making, another entry is especially intriguing. In the 1960s Ely had direct access to the Court through his clerkship for the chief justice and his association with appointed counsel Fortas; most recently Ely felt compelled to write a "fan letter" to Justices Anthony Kennedy, Sandra Day OÆConnor, and David Souter to commend them on their controlling opinion in the 1992 case of PLANNED PARENTHOOD v. CASEY, which upheld ROE v. WADE with only minor exceptions. Ely introduces the letter by admitting his own paradoxes: he is pro-choice, a conspicuous critic of ROE, and now a defender of the precedent it set. So where is that famous consistency he touts throughout the book? He explains in the letter to the trio of justices that overruling the ROE precedent would be a "terrible mistake. . . . Our society has indeed built up expectations on the basis of it, particularly as regards the aspirations of women." Moreover, Ely accurately observes that having presidents appoint justices who promise to overturn certain precedents, and then do so, "would weaken the CourtÆs authority immeasurably." To the extent that the broader result of ElyÆs process jurisprudence is to protect the CourtÆs legitimacy by urging it to reject value preferences as bases for constitutional interpretation, he remains consistent in his view of CASEY expressed to the authors of the plurality opinion. Interestingly, Ely reports in an endnote that all three justices responded to his missive, but he adds, "No, I wonÆt tell you what they said, though two seemed genuinely touched, the third politely grateful."
In a nutshell, that comment captures both the strengths and weaknesses of the more personal observations in this intellectual odyssey/memoir. The editorial remarks are at once informative, engaging, self-deprecatingly humorous, and at times just a tad too coy and sometimes perhaps disingenuous. To wit, can Ely really mean that at some point he quit longing for a judicial appointment? If so, perhaps it was around the time of the Bork debacle when it became clear that prolific academic writers might never pass Senate muster again for a seat on the Supreme Court. What a shame for truly gifted, intellectual legal theorists like Ely who would have graced the highest tribunal in the land with his wit and wisdom. A book such as ON CONSTITUTIONAL GROUND should have been his ticket to the bench, not an obstacle to its attainment.
